The State v Leon King

The accused, Leon King, was charged with assault with intent to do grievous bodily harm in the Magistrate's Court, East London. He was represented by Mr A K Nongendzi, who identified himself as an admitted advocate acting pro bono. Mr Nongendzi had been admitted as an advocate on 28 March 2017 while working as a state prosecutor. During 2017, he was convicted of driving under the influence of alcohol and only returned for sentencing two years later, by which time he had absconded from his post as a prosecutor. Thereafter he appeared as an advocate for accused persons. The trial proceeded to the defence case, at which point the presiding magistrate made enquiries to the Legal Practice Council (LPC) and was informed that Mr Nongendzi was "not registered on the records of the Legal Practice Council". When confronted, Mr Nongendzi promised "to fix the problem" but never returned to court. The magistrate sent the matter on special review requesting that the uncompleted proceedings be set aside as a nullity.

• Whether a person admitted as an advocate prior to the coming into operation of the Legal Practice Act 28 of 2014 must still be enrolled with the Legal Practice Council in order to practise
• Whether the absence of enrolment with the Legal Practice Council constitutes a fundamental irregularity rendering proceedings a nullity
• The correct interpretation of sections 24, 25, 30 and 114 of the Legal Practice Act 28 of 2014
• Whether an advocate acting pro bono must still be enrolled as a legal practitioner to have a right of appearance

The proceedings against the accused in the Magistrate's Court, East London, under case number A1140/2023, were reviewed and set aside. Should the prosecution of the accused commence de novo, the trial must be held before a different magistrate.

A person may only practise as a legal practitioner and have a right of appearance in South African courts if they are both admitted AND enrolled in terms of the Legal Practice Act 28 of 2014. Admission alone is insufficient. Section 30 of the LPA is peremptory and requires all persons admitted by the High Court to apply to the Legal Practice Council for enrolment. This requirement applies even to persons admitted as advocates prior to the coming into operation of the relevant sections of the LPA on 1 November 2018. A purposive interpretation of section 114(1) read with sections 24(1), 25(1) and 30 of the LPA establishes that admission and enrolment are two separate and necessary requirements to practise. Representation by an unenrolled person purporting to be a legal practitioner, whether acting for a fee or pro bono, constitutes a fundamental irregularity rendering court proceedings a nullity.

The court noted that Mr Nongendzi's conduct in holding himself out as a legal practitioner while not enrolled is prohibited by section 33(2) of the Legal Practice Act, and that in terms of section 93(2) of the LPA such conduct constitutes a criminal offence for which a penalty is prescribed. The court also mentioned the background of Mr Nongendzi's criminal conviction for driving under the influence and his absconding from his post as a prosecutor, though these facts were not directly relevant to the legal determination.

This case clarifies the requirements for legal practitioners to have a right of appearance under the Legal Practice Act 28 of 2014. It establishes that admission as an advocate is insufficient to practise - enrolment with the Legal Practice Council is a separate and mandatory requirement. The judgment emphasizes the regulatory framework established by the LPA and the importance of compliance with enrolment requirements to enable the LPC to fulfill its functions of regulating legal practitioners and ensuring accountability. It confirms that representation by an unenrolled person, even when acting pro bono, constitutes a fundamental irregularity that nullifies court proceedings. The case is particularly relevant for practitioners admitted under the previous dispensation who may have assumed they could continue practising without formally enrolling under the new regime.